The government has announced that it will not implement controversial website blocking provisions under the Digital Economy Act 2010 (DEA).

The DEA established a framework allowing the government to give the courts the power - through secondary legislation - to order ISPs to block access to copyright-infringing websites. However, the introduction of secondary legislation was delayed when the government decided, in February 2011, to ask Ofcom to look at whether the site-blocking provisions were workable in practice. Ofcom’s report, published on 3 August 2011, identifies a number of practical difficulties with the provisions. For example, the slow speed of the injunction process under the DEA would not allow rights-holders to quickly protect their rights in works such as live streamed events or pre-release content. Ofcom also notes that the narrow scope of the injunctions permitted under the DEA would mean that infringers could easily circumvent the court’s order by simply relocating the infringing website.

Although the government has decided not to proceed with the specific site blocking measures under the DEA, it says that it is keen to explore the issues raised by Ofcom and will be doing more work on measures to tackle online copyright infringement, such as targeting the revenue streams of infringing sites, banning advertising to such sites and withdrawing payment facilities. It will be interesting to see how future proposals are impacted by the recent success of a number of major film studios and distributors in obtaining an injunction against BT to block access to an infringing website – Newzbin2.

In the meantime, it is expected that Ofcom will shortly publish its “Initial Obligations Code” under the DEA. The code will make provision for copyright owners to notify ISPs of online infringements and for ISPs to alert subscribers if their account is being used for infringing activity. The DEA also give the government a future option to require ISPs to take “technical measures” against subscribers listed on a Copyright Infringement List so as to restrict or suspend that subscriber's internet access. Technical measures orders cannot be made in the first twelve months after the Initial Obligations Code comes into force and will only be introduced following an Ofcom assessment.